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Question: Given the ongoing COVID pandemic, do I have to return to work if I feel that it is unsafe?
Answer: COVID-19 is a workplace hazard. This is undeniable, particularly in the context of conventional congregated schooling. Like all workplace hazards, controls are needed to protect workers. The risk of infection with the coronavirus cannot be eliminated at this time, and as such, school authorities must take direction from the chief medical officer of health and work in consultation with their local medical officer of health. Authorities must follow the hierarchy of hazard controls: physical barriers and other measures to eliminate the hazard, administrative protocols (like physical distancing and hand washing), and personal protective equipment (like masks/face shields and gloves).
If, after adopting the best available hazard controls and following the chief medical officer’s protocols, the school authority determines that the work is not dangerous and no dangerous condition is present at the work site, the school authority can direct you to report to the school. In doing so, the employer would have to provide reason(s) why, in the employer’s opinion, the work does not constitute a danger to health and safety or a dangerous condition is not present.
If you receive a directive to return to work at a school, it is a lawful order of the board and you must comply if it is reasonable. You may, however, lodge a formal protest as provided for in Article 8 of the ATA Code of Professional Conduct.
Changes made to the Occupational Health and Safety (OHS) Act in June 2018 require the promotion and maintenance of the highest degree of physical, psychological and social well-being of workers. Further, in Part 4 of the revised OHS Act, a worker has the right to refuse dangerous work if, on reasonable grounds, the worker believes a dangerous condition exists at the work site or the work constitutes a danger to health and safety. If such is the case, the worker must promptly report a refusal and the reasons to the employer, supervisor or designate, and the employer must, when safe to do so, investigate and, where identified, remedy the dangerous condition. School authorities must, as part of their analysis, consider whether the risk of infection for a refusing worker poses a hazard to the worker’s psychological health and well-being and what might be done to minimize or mitigate this risk.
If a teacher is sick, either physically or psychologically, and unfit to be at work, then they should access sick leave entitlements in their collective agreement.
If the teacher has a diagnosed medical condition that places them at risk of injury or illness if forced back into the work site, this also must be taken into consideration. If there has been no voluntary disclosure of a medical condition with supporting medical documentation outlining the required medical restrictions, and all hazard controls have been implemented and the work site is deemed safe, but the worker still does not want to return to work, employers may be in a position to terminate the worker’s employment.
If an employee does provide medical documentation outlining their required medical restrictions, the duty to accommodate under the Human Rights Act is triggered, and as such, a conversation would be warranted. The employer also has a duty to accommodate for family status, which is a protected ground under the Human Rights Act. For example, if a teacher is in a situation as a result of COVID-19 where they do not have appropriate child care, they may have cause to be accommodated by being granted a leave of absence under their particular collective agreement.
It is still too early to say if working from home will continue to be an option once school resumes in September. Once the education minister releases the relaunch strategy for schools, we will be in a better position to provide advice and direction to members.
You will appreciate that the application of OHS and related legislation to schools in the context of the pandemic is complex, nuanced and continuing to evolve. If you have questions or concerns, please contact the Association offices in Edmonton (1-800-232-7208) or Calgary (1-800-332-1280) for advice. My colleagues in Member Services and Teacher Welfare will be pleased to assist. ❚
Questions for consideration in this column are welcome. Please address them to Dennis Theobald at Barnett House (dennis.theobald@ata.ab.ca).
